Volume 38 Issue 30 August 26, 2011

Feuston v. State, No. 38A02-1011-CR-1175, __ N.E.2d __ (Ind. Ct. App., Aug. 19, 2011).

Trial court has no duty to set a trial date when defendant absconds and fails to appear; Criminal Rule 4(C) one year did not begin to run until defendant’s notice of his incarceration in another county and request for trial were received by the trial court and the prosecutor; fact jail may have known of defendant’s presence in the other county was not attributable to court and prosecutor in this case.

Bex v. State, No. 53A01-1008-CR-422, __ N.E.2d __ (Ind. Ct. App., Aug. 22, 2011).

Federal Constitution permits trial by a jury of five when a jury of six is provided for by law, without alternates by agreement, and, due to an emergency, a juror is excused; consent to trial by five under such circumstances may be given by counsel, as a matter of trial strategy.

Perry v. State, No. 49A05-1012-CR-774, __ N.E.2d __ (Ind. Ct. App., Aug. 22, 2011).

Admission of hospital nurse’s record of statements assault victim made to nurse, including identity of attacker, did not violate either the hearsay rule or the Crawford Confrontation Clause rule.

Villagrana v. State, No. 08A05-1101-CR-21, __ N.E.2d __ (Ind. Ct. App., Aug. 24, 2011).

“Indiana does not criminally penalize those who negligently neglect a dependent.”

Aguirre v. State, No. 49A05-1101-CR-36, __ N.E.2d __ (Ind. Ct. App., Aug. 25, 2011).

Evidence that traffic stop motorist reached her hand into her purse to answer her cellphone while officer was trying to handcuff her for safety reasons did not suffice to prove crime of resisting arrest.

Gilmore v. State, No. 40A01-1011-CR-553, __ N.E.2d __ (Ind. Ct. App., Aug. 24, 2011).

After defendant had initially been found indigent and a reassessment of indigence elicited no evidence of a change in financial status, the trial court’s statement that an evaluation of defendant’s behavior (which had been obstreperous) was also relevant to indigence prompted an appellate finding the trial judge abused his discretion in finding the defendant to no longer be indigent; trial court’s finding that the defendant had forfeited his right to appointed counsel by his conduct was reversed on the basis that, without a hearing warning defendant that his conduct could result in loss of appointed counsel, the defendant could not be said to have made a knowing and intelligent waiver of the right to counsel by his conduct.



Feuston v. State, No. 38A02-1011-CR-1175, __ N.E.2d __ (Ind. Ct. App., Aug. 19, 2011).

CRONE, J.

            George A. Feuston was arrested in Jay County and charged with theft. While out on bond, Feuston failed to appear for his pretrial conference, and he was later arrested in Delaware County on an unrelated charge. After he was incarcerated in Delaware County, no further action was taken in the Jay County case until Feuston, acting pro se, filed a “Motion Requesting Final Disposition of Charges/Detainers.” Appellant’s App. at 20. Thereafter, Feuston was appointed counsel, who filed a motion for discharge pursuant to Indiana Criminal Rule 4(C). The trial court denied the motion and certified its order for interlocutory appeal. We accepted jurisdiction, and oral argument was held on June 27, 2011, in Indianapolis. Concluding that Feuston caused the delay in the Jay County case by absconding and failing to appear at his pretrial conference, we affirm.

            . . . .

            Feuston was released on bond in Jay County and then was arrested in Delaware County. We faced a similar factual scenario in Rust v. State, 792 N.E.2d 616 (Ind. Ct. App. 2003).2 Rust was arrested and charged in Hancock County in February 2001. After bonding out, Rust was arrested and charged in Marion County in March 2001. He bonded out again and appeared at his initial hearing in Marion County, but then failed to appear for subsequent hearings in both counties, and each county issued a warrant for his arrest. In October 2001, Rust surrendered in Hancock County and filed a “Notice of Surrender” in Marion County while he was being held at the Hancock County Jail. Id. at 617. Rust pled guilty to the Hancock County charges and was sentenced in August 2002. After he served that sentence, he was brought to Marion County.

            In October 2002, Rust moved to dismiss the Marion County charges pursuant to Criminal Rule 4(C). The trial court denied the motion, and Rust appealed. Rust conceded that the clock was tolled from the time that he failed to appear at his hearings until he surrendered himself. The parties disputed whether the filing of Rust’s Notice of Surrender restarted the clock. We concluded that “once the trial court and the State were notified via the Notice of Surrender where Rust was incarcerated, the State was obligated to proceed with the case in a timely manner,” and the State “could not simply wait until the Hancock County sentence was satisfied before moving forward with the Marion County charges.” Id. at 620. Therefore, we reversed the denial of his motion for discharge. Id.

            . . . .

            The State argues that Feuston’s case fits squarely within Werner and urges us to affirm the trial court. Feuston, however, argues that notice of the defendant’s whereabouts is irrelevant because the court can set a trial date regardless of whether the defendant is present. In support, he cites Schwartz v. State, 708 N.E.2d 34 (Ind. Ct. App. 1999).

            . . . .

            Feuston argues that because the State has an affirmative duty to bring him to trial in a timely manner and because a trial date can be set regardless of whether he appeared for his pre-trial conference, we should follow Schwartz. However, we agree with the State that Schwartz stands for the proposition that when the record is silent as to the reason for a delay, it will not be charged to the defendant, and our statements about setting a trial in the defendant’s absence are merely dicta. Feuston conceded at oral argument that the trial court has no duty to set a trial date in the defendant’s absence. Nor are we inclined to create such a duty; requiring trial courts to fill their calendars with “place holder” trial dates for defendants who have failed to appear or whose whereabouts are unknown would surely complicate scheduling matters in trial courts as a whole, especially because criminal trials are given first priority. Furthermore, we agree with the State that “[w]hen a defendant fails to appear for a hearing and his whereabouts are unknown, it makes little sense to set a trial date … unless it is to become the norm to try defendants in absentia even though it is certain that the defendant has not been informed of a trial date.” Appellee’s Br. at 9.

            Feuston also conceded that the trial court and prosecutor did not have actual or written notice of his whereabouts until he filed his motion on August 17, 2010.  [Footnote omitted.] Although Feuston alleged that the warrant was read to him soon after he was arrested in Delaware County, he did not present any evidence in support of that allegation, and the court’s records show that the warrant was not served and returned until August 17, 2010. Feuston’s records from the Delaware County Jail indicate that he was checked out to attend court in Jay County on August 19, 2009, but the CCS from the Jay County case has no entry on or around August 19, 2009. Thus, there was a factual issue for the trial court to resolve, and the trial court apparently concluded that Feuston did not appear in court in Jay County on this case in August 2009.

            The fax communications that Feuston attached to his motion seemingly indicate that the Jay County Jail was aware that he was incarcerated in Delaware County in August 2009.  [Footnote omitted.] Even if that is true, we conclude that the knowledge of a police or correctional officer should not be imputed to the trial court or prosecutor in these circumstances. The purpose of Criminal Rule 4(C) is to promote early trials and not to discharge defendants. Caldwell v. State, 922 N.E.2d 1286, 1288 (Ind. Ct. App. 2010), trans. denied. Unnecessary delays will not be deterred by granting discharges in cases where the trial court and prosecutor did not have actual knowledge of the defendant’s whereabouts. This is true regardless of whether some other agent of the State has this knowledge.  [Footnote omitted.]

            . . . .

            Furthermore, we note that Feuston does not have clean hands; the trial court and prosecutor lost track of his whereabouts in the first place because he absconded and failed to appear for his pre-trial conference.  [Footnote omitted.] When a defendant absconds, the ensuing delay is caused by his act; therefore, we conclude that the Criminal Rule 4(C) clock does not resume until the trial court and prosecutor have actual knowledge of his whereabouts. To hold otherwise would reward a defendant who absconds in the hope that the court and prosecutor will lose track of his case. Feuston presented no evidence that the trial court and prosecutor knew where he was before he filed his motion on August 17, 2010; therefore, we conclude that he has not demonstrated that he is entitled to a discharge.

NAJAM, concurs.

ROBB, C.J., concurs in result with separate opinion:

            Although I agree with the majority that the trial court did not err in denying Feuston’s motion for discharge pursuant to Criminal Rule 4(C), I respectfully concur only in the result because I believe the majority’s holding is too broad given the fact-sensitive nature of Rule 4(C) inquiries.

            The majority concludes that the trial court or prosecutor must have actual notice of the defendant’s whereabouts, slip op. at 10, and even if some other agent of the State – including the agent charged with finding him and bringing him before the trial court pursuant to a bench warrant if he fails to appear in court as ordered – has actual knowledge of the defendant’s whereabouts, that knowledge should not be imputed to the trial court or prosecutor if they do not have actual knowledge themselves, id. at 11. I would not say this is true in every instance.  . . . I believe the issue of notice is extremely fact sensitive, see 818 N.E.2d at 32, and if there was indisputable evidence that officials at the Jay County Jail were aware Feuston was incarcerated in the Delaware County Jail during the pendency of his Jay County case and further, indisputable evidence of when they became aware of Feuston’s incarceration, I would hold that the trial court and the prosecutor were sufficiently notified of Feuston’s whereabouts to begin the Rule 4(C) clock running as of that date.

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Bex v. State, No. 53A01-1008-CR-422, __ N.E.2d __ (Ind. Ct. App., Aug. 22, 2011).

KIRSCH., J.

            Bex contends that her constitutional right to a trial by jury was violated when a jury of only five members determined her guilt. The Sixth Amendment of the federal constitution provides for the right to trial by jury for criminal defendants. The United States Supreme Court, in Duncan v. Louisiana, 391 U.S. 145, 149 (1968), held that the Sixth Amendment right to trial by jury for criminal defendants applied to the states through the Fourteenth Amendment. Article I, section 13 of the Indiana Constitution also secures a criminal defendant’ right to trial by jury but, here, Bex challenges the alleged violation of her right only under the federal constitution.

            . . . .

            The trial court held a jury trial in this case on May 28, 2010. A jury of six members was seated without an alternate juror being selected.  . . . .

            . . . .

            During the State’s presentation of its case-in-chief, juror number two suffered a medical emergency. After taking a recess, the trial judge went back on the record and stated that previously the court, the State, and the defense counsel, in a sidebar conference, had agreed that no alternate juror would be picked and that if something happened to one of the jurors, the five remaining jurors would decide the case. The sidebar referred to by the trial judge was an unrecorded sidebar; however, defense counsel acknowledged on the record the accuracy of the trial court’s statement of the agreed procedure. After the trial judge’s statement, the court recessed for lunch. Upon reconvening, defense counsel moved for a mistrial based upon his uncertainty that his agreement to a five-member jury was valid. The trial court denied the motion, and the trial continued. The five remaining jurors deliberated and returned a guilty verdict to the charge of operating a vehicle while intoxicated in a manner endangering a person, a Class A misdemeanor.

            . . . .

            It has long been held in this state that, under the Sixth Amendment, a defendant may waive the statutory right to a twelve-person jury and consent to a trial by an eleven-person jury. See Smith v. State, 176 Ind. App. 37, 39, 373 N.E.2d 1112, 1113 (1978) (although statute provided for jury of twelve members, such provision is primarily for protection of defendant and thus defendant may waive requirement of twelve-member jury and consent to be tried by jury of eleven members). We now take up the question of whether, under the Sixth Amendment, a defendant may waive his or her statutory right to a six-person jury and agree to be tried by a jury of five members.

            Bex asserts that a defendant may not waive his or her right to a six-member jury. In support of her argument that her constitutional right to a jury trial was violated in this case, Bex relies on Ballew v. Georgia, 435 U.S. 223 (1978). In that case, the United States Supreme Court addressed the constitutionality of a Georgia statute providing for five-person juries in certain types of cases. The Court examined scholarly studies on jury size and raised several concerns about juries containing less than six members. Those concerns include: smaller juries are less likely to foster effective group deliberation; the risk of convicting an innocent person rises as the size of the jury diminishes; the verdicts of jury deliberation in criminal cases will vary as juries become smaller, to the detriment of the defense; the opportunity for meaningful and appropriate representation of a cross-section of the community decreases with the size of the panel; and there exist methodological problems that tend to mask differences in the operation of smaller and larger juries. Id. at 231-39. Based upon its application of the factors identified in the studies, the Court determined that Ballew’s criminal trial before a five-member jury deprived him of the right to trial by jury as guaranteed by the Sixth Amendment.

            We disagree with Bex’s claim that the rationale set forth in Ballew should be applied here because Ballew is distinguishable from the present case. In Ballew, the five-member jury was mandated by a state statute. In contrast, in the instant litigation Bex was provided with the statutory right to a six-person jury.  [Footnote omitted.]  Her trial began with six jury members and, due to a medical emergency, one member was excused from service. A five-member panel was not legislatively imposed upon Bex, thereby affording her the opportunity to decline the service of a panel made up of less than six members. Moreover, in deciding proceed without an alternate, Bex knew the six jurors she was getting and elected to proceed in the event one could not serve; the defendant in Ballew did not know the jurors and made no such election. Thus, we see an important distinction between the situation in Ballew, where the law mandated a five-member jury, and the present situation, where the law provides for a six-member jury, but the defendant chooses to waive that right and accept less than the law provides.

            . . . .

            Moreover, six is not viewed as a magic number but merely the boundary at which courts across the country have drawn a line in defining the size of a jury that must be provided to a defendant in certain cases. See Ballew, 435 U.S. at 231-32; Blair, 698 So.2d at 1216. We agree with the reasoning of the Florida Supreme Court that, based upon a defendant‟s right to waive the presence of an entire jury, it would be inconsistent to hold that a defendant could not waive the presence of one juror. Blair, 698 So.2d at 1217. Therefore, we conclude that there is no federal constitutional bar to a defendant‟s waiver of the presence and participation of one of the six jurors in a criminal trial.

            . . . .

            In sum, the case law reflects that under the Sixth Amendment, a defendant is entitled to a jury comprised of at least six members, as a five-member jury imposed on a defendant does not pass constitutional scrutiny. Williams, 399 U.S. at 91 n.28; Ballew, 435 U.S. at 239. However, a defendant can consent to a trial by fewer jurors than assured him by statute, and that decision is one of trial procedure. As such, a defendant who consents to representation by counsel consents to his counsel’s decisions on trial strategy. Unless, the defendant objects to his counsel’s decisions, he is bound by those decisions. Thus, counsel’s consent to or acceptance of a jury comprised of fewer members than provided for by statute, is a valid consent of the accused in the exercise of trial strategy. We find no error here.

MATHIAS, J., concurs,

SULLIVAN, Sr.J., concurs in part and dissents in part with separate opinion:

            I concur in the first portion of the majority’s opinion as to Part I, Right to Jury Trial. I respectfully dissent, however, with regard to the majority’s holding that the waiver by counsel, rather than by the defendant herself, was effective and binding upon the defendant.

            Further, I respectfully disagree with the decision reached by a panel of this Court in Judy v. State, 470 N.E.2d 380 (Ind. Ct. App. 1984). More particularly, I am unable to agree with the implication of that opinion, as adopted by the majority in the case before us, to the effect that consent not by the defendant but rather by counsel to a trial by a jury of fewer than six persons does “not involve a fundamental right [of the defendant]” and that it is “merely a matter of trial procedure.” Id. at 382.

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Perry v. State, No. 49A05-1012-CR-774, __ N.E.2d __ (Ind. Ct. App., Aug. 22, 2011).

VAIDIK, J.

            Dennis Perry appeals his convictions for strangulation, criminal mischief, and possession of cocaine. Perry was accused of assaulting his ex-girlfriend, N.D. After the alleged assault, N.D. sought assistance from police and was brought to the hospital for examination. She told her examining nurse that she had been sexually assaulted and strangled. She further identified Perry as the assailant. N.D.’s statements were admitted at trial via a medical record prepared by the examining nurse. N.D. did not testify. Perry argues that N.D.’s statements constituted inadmissible hearsay and that their admission violated his Sixth Amendment right to confrontation. We conclude that N.D.’s material statements—those detailing her physical attack and identifying her attacker—were admissible pursuant to the medical diagnosis exception to the hearsay rule. We further conclude that N.D.’s statements were nontestimonial under Crawford v. Washington, 541 U.S. 36 (2004), and Davis v. Washington, 547 U.S. 813 (2006), and thus did not implicate Perry’s confrontation rights.

            . . . .

            Nurse Calow completed a medical record in connection with her examination of N.D. State’s Ex. 6A. The report identified “Dennis [P]erry” as the suspected assailant. Id. It relayed N.D.’s statements that Perry “grabbed her around the neck” and that N.D. experienced pain from an “attempted strangulation.” Id.  . . . .

            . . . .

            During Nurse Calow’s testimony, the State offered the medical record into evidence. Perry objected, arguing that N.D.’s statements within the record constituted inadmissible hearsay. Perry did not raise an objection on Sixth Amendment grounds.

            The trial court admitted the record over objection, though the narrative portion was redacted to read as follows:

            Mr. [P]erry then ordered her to drive him to a friend’s house. Pt states she is afraid of Mr. [P]erry so she did as he asked because she didn’t want to get hurt. He then ordered her to drive. Mr. [P]erry said “I want to fuck”. Pt said no due to her being on her period now. Mr. [P]erry then grabbed her by the waist and pulled her on top of him. He then ordered her to take out her tampon. [H]e was about to “nut” and pulled her on top of him so that his penis was inside her. She then stated he was inside for about 10 seconds when he ejaculated in her. He reached over and started strangling her with his hands. He got in the drivers seat and reached over to strangle her some more. Mr. [P]erry then drove to a gas station to get some cigarettes while [N.D.] laid in the back seat of the car. He then drove them back[.] That is when the assailant noticed his colostomy bag had ruptured and he got out of the car. [] Mr. [P]erry came at her with a tire iron. He tried to break the drivers side window, shattered the windshield. [N.D.] then drove off and went to the nearest police station.

State’s Ex. 6.

            Perry argues that the trial court erred by admitting Nurse Calow’s medical record and N.D.‟s statements relayed therein. Perry maintains that (A) the statements constituted inadmissible hearsay and (B) their admission violated his right to confrontation under the Sixth Amendment.

A. Hearsay Claim

            The first issue is whether the medical record and N.D.‟s statements within constituted inadmissible hearsay under the rules of evidence.

            . . . .

            This case involves multiple hearsay under Rule 805—that is, N.D. made several out-of-court statements to Nurse Calow, and Nurse Calow prepared an out-of-court medical record relaying what N.D. told her. Both N.D.’s statements and Nurse Calow’s record were offered at trial for their truth. Accordingly, we analyze each set of statements in turn to determine their admissibility under an applicable hearsay exception.

1. Statements by N.D. to Nurse Calow

            We first address the admissibility of N.D.’s out-of-court statements to Nurse Calow.

Indiana Evidence Rule 803(4) sets forth the “medical diagnosis exception” to the hearsay rule. Rule 803(4) provides for the admissibility of statements “made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.” The rationale underlying the exception is that a declarant’s self-interest in seeking treatment reduces the likelihood that she will fabricate information that she provides to those who treat her. McClain v. State, 675 N.E.2d 329, 331 (Ind. 1996). 

            In determining the admissibility of hearsay under Rule 803(4), courts evaluate (1) whether the declarant’s motive was to provide truthful information to promote diagnosis and treatment and (2) whether the content of the statement is such that an expert in the field would reasonably rely on it in rendering diagnosis or treatment. In re Paternity of H.R.M., 864 N.E.2d 442, 446 (Ind. Ct. App. 2007).

            Statements attributing fault or establishing a perpetrator’s identity are typically inadmissible under the medical diagnosis exception, as identification of the person responsible for the declarant’s condition or injury is often irrelevant to diagnosis and treatment. Beverly v. State, 801 N.E.2d 1254, 1259 (Ind. Ct. App. 2004), trans. denied.

            However, we have noted that in cases involving child abuse, sexual assault, and/or domestic violence, courts may exercise their discretion in admitting medical diagnosis statements which relay the identity of the perpetrator. See Nash v. State, 754 N.E.2d 1021, 1024-25 (Ind. Ct. App. 2001); see also Dowell v. State, 865 N.E.2d 1059 (Ind. Ct. App. 2007), summarily aff’d in relevant part, 873 N.E.2d 59 (Ind. 2007). As we recognized in Nash:

All victims of domestic sexual abuse suffer emotional and psychological injuries, the exact nature and extent of which depend on the identity of the abuser. The physician generally must know who the abuser was in order to render proper treatment because the physician’s treatment will necessarily differ when the abuser is a member of the victim’s family or household. In the domestic sexual abuse case, for example, the treating physician may recommend special therapy or counseling and instruct the victim to remove herself from the dangerous environment by leaving the home and seeking shelter elsewhere. In short, the domestic sexual abuser’s identity is admissible under Rule 803(4) where the abuser has such an intimate relationship with the victim that the abuser’s identity becomes “reasonably pertinent” to the victim’s proper treatment. 11

754 N.E.2d at 1024-25 (quoting United States v. Joe, 8 F.3d 1488, 1494-95 (10th Cir. 1993)).

            . . . .

            Here we conclude that the material statements N.D. made to Nurse Calow—namely, those describing the physical attack and identifying Perry as the assailant—were admissible pursuant to Rule 803(4). N.D.’s statements indicating she was “grabbed . . . around the neck” and strangled were pertinent to the diagnosis and treatment of her physical injuries. And N.D.’s identification of her assailant was pertinent to potential treatment for HIV or other sexually transmitted diseases, relevant to any psychological counseling for domestic abuse, and significant to medical personnel in deciding how to discharge their patient. As Nurse Calow explained, “When we meet with them we‟re assessing the patient at first, her demeanor, any — I need to know her state of mind. Any medical history . . . if she knows the assailant‟s medical history too it‟s important. That guides me, the treatment plan that I‟m going to do. Where I need to look for injuries. I get the history of the assault too . . . .” We acknowledge that additional statements in the medical record may have exceeded the scope of the medical diagnosis exception and were left unredacted. For example, N.D. said that Perry “ordered her to drive him to a friend’s house” and “drove to a gas station to get some cigarettes.” We conclude, however, that any error in the admission of these nonmaterial statements was harmless.  . . . .

2. Record Prepared by Nurse Calow

            The next question concerns the admissibility of the medical record itself.

            Indiana Evidence Rule 803(6) sets forth the hearsay exception for “records of regularly conducted business activity.”  . . . .

            . . . .

            To be sure, the hearsay rules exclude “investigative reports by police and other law enforcement personnel” when offered against the accused in criminal cases. See Ind. Evidence Rule 803(8).  . . . .

            However, we do not read “police and law enforcement personnel” to encompass treating physicians or nurses, even where such medical personnel may act in cooperation with law enforcement authorities. Cf. Nash, 754 N.E.2d at 1026 (record from nurse’s examination of victim held admissible); 30B Michael H. Graham, Federal Practice & Procedure § 7047 (Interim ed. 2006) (noting that ambulance driver’s report would be admissible on its face); United States v. Rosa, 11 F.3d 315, 331-33 (2d Cir. 1993) (medical examiner not “law enforcement personnel” under 803(8)).

            We conclude that N.D.’s medical record and Nurse Calow’s observations relayed therein were admissible pursuant to Rule 803(6). Nurse Calow created the record in connection with her contemporaneous evaluation of N.D. and in the course of the hospital’s regular business activity of consulting patients and documenting treatment. We therefore find no error in its admission.

B. Confrontation Claim

            Perry next argues that the admission of N.D.’s statements violated his Sixth Amendment right to confrontation.  . . . .

            . . . .

            In Crawford v. Washington, the United States Supreme Court reexamined the history surrounding the Confrontation Clause and concluded that, even where hearsay is deemed admissible under the rules of evidence, if the hearsay is “testimonial” in nature, then the Sixth Amendment bars its admission in criminal trials unless the declarant is unavailable to testify and the defendant had a prior opportunity for cross-examination. 541 U.S. 36, 68 (2004).

            Our analysis of multiple hearsay under Crawford proceeds in a stepwise fashion as under the rules of evidence. Or in the words of one court, “the Confrontation Clause principle enunciated in Crawford is implicated only if one or more levels of multilevel hearsay involve both a testimonial statement and the unavailability of—and lack of prior opportunity to cross-examine—the declarant of that statement. . . . Stated another way, in order for Crawford to apply to a multilevel hearsay statement, the two prerequisites to that application—a testimonial statement and an unavailable declarant—must coincide on at least one level.” State v. Ennis, 158 P.3d 510, 518 (Or. Ct. App. 2007).

1. Statements by N.D. to Nurse Calow

            We must determine whether the admission of N.D.’ statements to Nurse Calow violated Perry’s confrontation rights—or more specifically, whether N.D.’s statements constituted “testimonial” hearsay which, in the absence of any opportunity to cross-examine N.D., were inadmissible under Crawford and the Sixth Amendment.

            . . . .

            So in assessing whether N.D.’s statements to Nurse Calow were “testimonial” for purposes of the Sixth Amendment, the question is: what, objectively speaking, was the primary purpose of Nurse Calow’s examination and N.D.’s statements incident thereto?

            . . . .

            In line with the foregoing, we conclude that N.D.’s statements to Nurse Calow describing her physical attack and identifying her assailant were nontestimonial. N.D. was allegedly the victim of an unprotected sexual assault. The assault resulted in physical injuries to N.D.’s neck, ears, and back. N.D. was transported to the hospital shortly thereafter to receive medical attention and psychological assessment. She was tested for pregnancy and STDs and was given medication to reduce the risk of gonorrhea, chlamydia, and other infections. N.D. had already recounted the events in question to law enforcement before going to the hospital. And significantly, Nurse Calow described her protocol in pertinent part: “When we meet with them we’re assessing the patient at first, her demeanor, any — I need to know her state of mind. Any medical history . . . if she knows the assailant’s medical history too it’s important. That guides me, the treatment plan that I’m going to do.” (Emphasis added). We believe that the totality of the circumstances, viewed objectively, indicates that the primary purpose of Nurse Calow’s examination and the primary purpose of N.D.’s statements in the course thereof were to furnish and receive emergency medical and psychological care. We recognize that the examination had an investigative component. Nurse Calow was a forensic nurse. She took pictures of N.D.’s injuries and collected DNA samples to send to analysts. N.D. signed consent forms permitting any evidence obtained during the exam, as well as the medical record itself, to be forwarded to law enforcement. We further acknowledge that N.D. was transported to the hospital by police, though we note that no officers were present during Nurse Calow’s intake interview or examination. At any rate, evaluating the encounter objectively and in light of all relevant factors, we still cannot say that the “primary purpose” of the exam from either the patient’s or caretaker’s perspective was to prove past facts with an eye toward trial. To echo the Ohio Supreme Court, that function was at best secondary to the principal objective of providing and receiving medical attention. We therefore conclude that N.D.’s statements were nontestimonial under Crawford, Davis, and Bryant and did not implicate Perry‟s Sixth Amendment right to confrontation.

2. Record Prepared by Nurse Calow

            The remaining question concerns the admissibility under Crawford of the medical record itself.

            Crawford made clear that “when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements.” 541 U.S. at 59 n.9.

            Nurse Calow was the technical “declarant” of the overall medical record. She appeared at trial and was subject to cross-examination by the defense. So assuming that the medical record itself was a testimonial document under Crawford, the Sixth Amendment posed no bar to the admission of the record on its face.

            For the reasons stated, we conclude that the admission of N.D.’s medical record and statements relayed therein did not run afoul of Perry’s Sixth Amendment rights.

KIRSCH, J., and MATHIAS, J., concur.

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Villagrana v. State, No. 08A05-1101-CR-21, __ N.E.2d __ (Ind. Ct. App., Aug. 24, 2011).

BAKER, J.

            Today we address a scenario that happens every day in every city of America, namely, a child’s whereabouts is unknown by an inattentive parent. Here, a father was watching television when the mother told him that she was leaving to run errands and that he needed to watch their two-year-old daughter. The father was under the mistaken belief that the daughter was upstairs with his aunt, and she managed to get outside through a back door that had been left open. The father realized that his daughter had gone outside and located her within twenty minutes but not before a neighbor found the child and called the police. Almost eight months after the incident, the father was charged, and eventually convicted of class D felony child neglect. While the father was negligent, the child neglect statute requires intent beyond negligence. Consequently, we reverse his conviction.

            . . . .

            . . . [W]e cannot conclude that the State presented sufficient evidence establishing that Villagrana was subjectively aware of a high probability that N.V. had been placed in a dangerous situation. More particularly, the evidence shows the entire incident occurred within approximately twenty minutes, during which Villagrana either thought that N.V. was with his aunt or was searching for her.

            That being said, we do not intend for our conclusion to be interpreted as approval for Villagrana’s inattention to his daughter. To be sure, Villagrana’s conduct was negligent. Nevertheless, negligence does not satisfy the requisite mens rea under the child neglect statute, which requires that the defendant engage in the prohibited conduct intentionally or knowingly. Put another way, Indiana does not criminally penalize those who negligently neglect a dependent. Here, the State presented insufficient evidence to show that Villagrana acted “knowingly” and, therefore, presented insufficient evidence to sustain his conviction for class D felony neglect of a dependent, and we reverse the decision of the trial court.

KIRSCH, J., and BROWN, J., concur.

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Aguirre v. State, No. 49A05-1101-CR-36, __ N.E.2d __ (Ind. Ct. App., Aug. 25, 2011).

BROWN, J.

            Officer Green asked Aguirre for her license, registration, and insurance. Aguirre gave the officer her passport and stated that she did not have a license or insurance. Officer Green ran Aguirre’s information and determined that her license was suspended.

            Aguirre was “moving around and not really paying attention,” and Officer Green decided to handcuff Aguirre for officer safety as she was the only officer on the scene. Transcript at 7. The officer testified:

I advised her turn around put your hands behind your back I am going to place you in handcuffs. At that time she did not do what I asked her to do. Her purse was sitting on the hood of her car she dove her hand into her purse. And for safety reasons I pushed her against her car grabbed one hand and handcuffed it. And, I had to forcibly take her other hand out of her purse and at that time she had her phone on her ear she pulled her phone out hit a button. Started yelling they are arresting me. I took the phone out of her hand. Forced her hand back and handcuffed her.

Id.

            The State charged Aguirre with resisting law enforcement as a class A misdemeanor and driving while suspended as a class A misdemeanor.MM. . . .

            . . . .

            Here, the lack of evidence is similar to that in Graham and Berberena. The State did not present any evidence that Aguirre herself used force or “made threatening or violent actions” to contribute to the struggle with Officer Green. See Ajabu, 704 N.E.2d at 496. While Officer Green testified that Aguirre “dove her hand into her purse,” which was sitting on the hood of the car, Transcript at 7, “[i]t is error as a matter of law to conclude . . . that ‘forcibly resists’ includes all actions that are not passive.” 903 N.E.2d at 965. Indeed, the record reveals that Aguirre was attempting to answer her cell phone. The record does not indicate any evidence that Aguirre used the requisite force via “strong, powerful, violent means” to evade Officer Green’s rightful exercise of her duties. See Spangler, 607 N .E.2d at 723. There is no evidence that Aguirre stiffened her arms, like the defendant in Johnson, was violent or threatening, or otherwise forcibly resisted Officer Green.

            Based upon our review of the record, we conclude that there is insufficient evidence of probative value from which the trial court could reasonably have found beyond a reasonable doubt that Aguirre committed resisting law enforcement as a class A misdemeanor.

KIRSCH, J., concurs.

BAKER, J., dissents with separate opinion:

            I must respectfully dissent. While Aguirre’s version of events would lead one to conclude that she is not guilty of resisting law enforcement, this Court is not permitted to reweigh the evidence. And the evidence most favorable to verdict is Officer Green’s testimony that when she grabbed Aguirre’s hand to place it in handcuffs, Aguirre pulled her hand away. Officer Green had to force Aguirre‟s hand into handcuffs. This is sufficient to sustain Aguirre’s conviction for resisting law enforcement.

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Gilmore v. State, No. 40A01-1011-CR-553, __ N.E.2d __ (Ind. Ct. App., Aug. 24, 2011).

KIRSCH, J.

            Gilmore contends that the trial court abused its discretion by reversing its previous determination of his indigency as there had been no substantial change in his financial status since he was charged with murder.  . . . .

            . . . .

            At the August 26, 2010 hearing, during which the issue of Gilmore’s indigent status was revisited, Gilmore stated under oath that he was fifty-eight years old, lived alone, and that his thirty-six-year-old daughter did not depend on him for support. He acknowledged receiving roughly $1,000 per month in social security income benefits, having a ten-year-old mobile home sitting on property to which he has free and clear title, and owning a 1980 Blazer that was inoperable and a 1990 Chevy Lumina van that he inherited from his mother. In the trial court’s September 1, 2010 order, the trial court noted that the Jennings County Assessor valued Gilmore’s property at $54,000.00 as of March 1, 2010 and that his income from Social Security was in excess of Federal Poverty Guidelines. Appellant’s App. at 68. Standing alone, this finding may be sufficient upon which to base a determination that Gilmore was not indigent and, hence, did not qualify for court-appointed counsel. The trial court was familiar with attorney fees in criminal cases in Jennings County and specifically noted that the cost of the two experienced attorneys who represented Gilmore in his first trial was Twenty-one Thousand Dollars ($21,000.00), significantly less than the value of Gilmore’s property.

            The trial court’s finding, however does not stand alone. The court also stated, without citing any authority, that “a Court must also consider a Defendant’s conduct and behavior when re-evaluating indigency.” Id. We find this statement troubling because it indicates that the trial court based its indigency determination in whole or in part on its assessment of Gilmore’s conduct, not his financial condition. We have found no such requirement with regard to an indigency status determination.

            The State argues that Gilmore has provided us with an incomplete record upon which to make a determination whether the trial court abused its discretion in finding Gilmore no longer indigent. The State claims that in order for this court to examine the trial court’s determination for an abuse of discretion, Gilmore should have provided the transcripts from the initial hearing, and the 2009 indigency review hearing. The State contends that we cannot know the full extent of the trial court’s inquiry into the matter, or what information had changed without those transcripts. Although transcripts of the prior hearings would have supplied the complete background, we nonetheless find the record sufficient to allow us to make our decision.

            The only change evident from the findings and conclusions is the trial court’s understandable irritation with Gilmore for his apparent attempts to frustrate the judicial system. Gilmore has been able to delay his retrial on the murder charges by insisting that his court-appointed counsel adhere to his defense theories, ultimately leading to a breakdown in the lawyer-client relationship on numerous occasions. The question, however, is Gilmore’s financial condition, not his behavior. The trial court found that Gilmore was indigent and entitled to appointed counsel. Thereafter, there was no substantial change in his financial status. Having found that Gilmore’s assets and income were insufficient for him to afford to hire his own counsel, the court cannot reverse its decision without finding a change in circumstances since its earlier decision or determining that its prior decision was in error. Here, the trial court did neither. Accordingly, we conclude that the trial court abused its discretion by finding that Gilmore was not indigent when he lacks the financial resources to hire an attorney without imposing substantial hardship on himself. The trial court retains the ability to order Gilmore to reimburse the costs of his defense to the extent he is able to do so.

II. Forfeiture or Waiver of Right to Counsel

            Having found that Gilmore is indigent, and therefore, entitled to court-appointed counsel, we turn to the issue of whether Gilmore waived or forfeited that right by his conduct. Gilmore contends that the trial court erred by finding that he had waived his right to counsel by conduct. The trial court found that Gilmore had derailed his own prosecution because he was so obstreperous and difficult that no one could represent him. Appellant’s App. at 68. The trial court concluded that Gilmore had waived his right to counsel by his conduct. (“Although a Defendant has a right to competent, effective counsel, if indigent, he does not have the right to abuse it, in this case at the expense of the County.”) Id. at 69. The trial court reached this conclusion even though Gilmore consistently requested to be represented by counsel.

            . . . .

            In the present case, Gilmore engaged in behavior that led his court-appointed attorneys to withdraw from representation. Understandably, the trial court became dissatisfied with the delay seemingly caused by Gilmore in moving the case forward. This conduct was not of the kind often associated with a finding of forfeiture of the right to counsel. Nor does this conduct fit neatly into the category of cases in which waiver of the right to counsel is found, as Gilmore repeatedly requested representation by counsel. Instead, it appears to be more along the lines of a waiver by conduct or forfeiture with knowledge. As such, Gilmore was and is entitled to a hearing during which he should be warned that if his obstreperous behavior persists, the trial court will find that he has chosen self-representation by his own conduct. Then the inquiry turns to an analysis of whether Gilmore made a knowing and intelligent waiver of his right to counsel, which includes a warning of the dangers and disadvantages of self-representation established in an on-the-record evidentiary hearing where specific findings are made. While not condoning Gilmore’s apparent obstreperous conduct, because those warnings were not given to Gilmore, we conclude that the trial court erred by finding that Gilmore had waived his right to counsel. We, therefore, vacate the trial court’s order and remand for further proceedings consistent with this opinion.

VAIDIK, J., and MATHIAS, J., concur.

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